2157 Improper Naming of Inventors [R-07.2015]

Although the AIA eliminated pre-AIA 35 U.S.C.
102(f), the patent laws still require the naming of the actual
inventor or joint inventors of the claimed subject matter. See 35 U.S.C.
115(a) (“[a]n application for patent that is filed under
[35 U.S.C.]
111(a) or commences the national stage under [35 U.S.C.] 371 shall
include, or be amended to include, the name of the inventor for any invention claimed in
the application”). The Office presumes that the named inventor or joint inventors in the
application are the actual inventor or joint inventors to be named on the patent. See
MPEP §
2137.01. Where an application names an incorrect inventorship,
the applicant should submit a request to correct inventorship under 37 CFR 1.48. See
MPEP §
602.01(c) et seq. In the rare situation where it clear that the application does
not name the correct inventorship and the applicant has not filed a request to correct
inventorship under 37 CFR
1.48, Office personnel should reject the claims under
35 U.S.C.
101 and 35 U.S.C. 115. See
MPEP §
706.03(a), subsection IV. Note that a rejection under
pre-AIA 35 U.S.C.
102(f) should not be made if the application is subject to
examination under the first inventor to file (FITF) provisions of the AIA. See
MPEP §
2159et seq. to determine whether an application is subject to examination
under the FITF provisions, and MPEP § 2137 for information pertaining to
pre-AIA 35 U.S.C.
102(f).